2. Relevant evidence means evidence having any tendency in reason to prove any material
fact. The concept of relevance under Kansas law includes both whether evidence is
probative and whether it is material. An appellate court reviews whether evidence is
probative under an abuse of discretion standard and whether it is material under a de novo
standard.

3. A district judge's determination on whether certain evidence is unduly prejudicial is
reviewed for abuse of discretion.

4. On the facts of this sexually violent predator commitment proceeding it was not necessary
for the district judge to know the facts of respondent's prior crimes to determine relevance
of criminal history to mental abnormality or personality disorder.

5. An appellate court reviews a district judge's interpretation of statutes de novo and relies
exclusively on the plain language of the text unless it is unclear or ambiguous.

6. K.S.A. 59-29a03 does not explicitly limit the types of offenses about which evidence can
be admitted in a sexually violent predator commitment proceeding. On the facts of this
case, the district judge did not err in rejecting respondent's effort to exclude proof of his
prior crimes on relevance grounds.

7. On the facts of this case, the admission of all other crimes or civil wrongs did not
undermine the constitutionality of K.S.A. 59-29a01 et seq. This is a civil, not a
criminal
proceeding; the constitutional double jeopardy doctrine does not apply.

8. On the facts of this case, the respondent's stipulation dispensed with the usual prerequisite
of admission of records relied upon by an expert, pursuant to K.S.A. 60-456(b).

Review of the judgment of the Court of Appeals in 39 Kan. App. 2d 643, 183 P.3d 4
(2008). Appeal from
Shawnee district court; FRANK J. YEOMAN, JR., judge. Judgment of the Court of Appeals
affirming the district
court is affirmed. Judgment of the district court is affirmed. Opinion filed July 10, 2009.

Michael M. Jackson, of Topeka, argued the cause and was on the brief for
appellant.

Stephen R. McAllister, solicitor general, argued the cause, and Nola F.
Wright, assistant attorney general,
and Paul J. Morrison, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: This is an appeal from respondent John Colt's indefinite civil commitment as a
sexually violent predator under K.S.A. 59-29a01 et seq. (the Act). He argues that his
jury should
not have been permitted to consider evidence of his prior crimes, particularly those that had no
sexual component; that the State's expert based his opinion on inadmissible evidence in violation
of K.S.A. 60-456(b); and that the evidence was insufficient to support the jury's verdict.

We affirm.

This proceeding followed from Colt's 2001 conviction of one count of aggravated sexual
battery and one count of aggravated burglary, arising from his unlawful entry into his neighbor's
apartment and ensuing attempted rape. In this proceeding, Colt filed a motion in limine to
preclude the State from offering evidence of Colt's 1997 convictions for forgery and theft; a 1997
conviction for battery; a 1997 conviction for battery on a law enforcement officer; a 1996
conviction for theft of property valued at less than $500; two 1995 convictions for disorderly
conduct; a 1995 conviction for criminal damage; a 1994 conviction for battery; a 1994 conviction
for unlawful deprivation of property; a 1993 conviction for unlawful deprivation of property;
1993 convictions for theft and burglary; 1991 convictions for battery and criminal damage; and
Kansas Department of Corrections disciplinary reports from 1998 through 2004. The district
judge denied Colt's motion as to all of the prior convictions, noting the State's expert witness had
relied upon them. The district judge also determined that the probative value of evidence of the
convictions outweighed any prejudicial effect. The district judge granted Colt's motion as to the
disciplinary reports.

Before trial, the parties stipulated to Colt's 2001 aggravated sexual battery and aggravated
burglary convictions and

At trial, clinical psychotherapist Rex Rosenberg testified for the State, explaining that
Colt's criminal history played a significant role in his evaluation. Rosenberg provided the jury with
a list of Colt's prior crimes:

"In terms of the convictions, . . . there was a conviction for battery and criminal
damage
to property under $500 . . . theft under $500, theft over $500 and a burglary of a motor vehicle[,]
aircraft or other means of conveyance . . . deprivation of property, . . . battery, . . .
criminal
damage to property over $500, . . . disorderly conduct, . . . theft under $500, . . .
battery against a
law enforcement officer, . . . he was arrested for indecent liberties with a minor . . . .

"[A note from the] Osawatomie State Hospital[] indicated he reported to have put a cat in
the
microwave and had killed a family dog by throwing rocks at the - - a report from Providence St.
Margaret Health Center in 1992 indicated that was his first admission as a 14 year old because of
the suicidal threat. He had been jailed for auto theft. He was arrested at that time for automobile
larceny and a high speed chase . . . he had six auto theft charges with more to be prosecuted. The
patient admitted to truancy, running away, smoking, noncompliance - - stated he stole cars for
joyrides . . . The Youth Center of Topeka - - at age 16, that happened - - following three counts
of misdemeanor criminal deprivation of property, he and some friends were drunk one night.
And then at age 17, [Colt] was admitted to Topeka State Hospital for five months as a result of
fighting in school, breaking into a house, and being kicked out of group homes. At age 12, he
phoned the police and told them he was going to shoot his father. . . .

". . . He was admitted to the Western Missouri Mental Health facility following a
long
history of behavioral problems starting at the age of three, that included fear, setting - -
destruction of property, fighting, illegal and cruelty to animals. Those are some of the documents
I have reviewed."

Rosenberg further testified that Colt had acknowledged during interviews that thoughts of
rape sexually stimulated him. Colt had said that, within 5 minutes of being placed in jail in the
2001 case, "he masturbated to fantasies of what could have happened." Colt had also admitted to
sodomizing a prostitute. Rosenberg also administered two screening tests to Colt.

Rosenberg diagnosed Colt with Paraphilia Not Otherwise Specified; alcohol dependence;
partial sustained remission in a controlled environment; cannabis dependence; impartial sustained
remission in a controlled environment; and antisocial personality disorder. Rosenberg opined that
Colt has serious difficulty controlling his behavior and would be at a high risk to commit a future
sex offense.

Colt appealed his commitment to our Court of Appeals, which affirmed. We granted his
petition for review.

Admission of Evidence of Prior Crimes

There are two parts to Colt's argument on this point. Like the respondent in In re
Care
&Treatment of Miller, ___ Kan. ___, ___ P.3d ___ (2009), filed this day, he contends
that broad
language in State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), applies and dictates
reversal under
K.S.A. 60-455. He also contends that evidence of prior crimes with no sexual component was
irrelevant, and that its admission undermines the constitutionality of the Act.

Gunby

The merit of and outcome on this argument by Colt is controlled by our decision today in
Miller, ___ Kan. at ___. As we said there, the broad language in Gunby
regarding K.S.A. 60-455
analysis must be circumscribed in light of our earlier decision in In re Care & Treatment
of Hay,
263 Kan. 822, 953 P.2d 666 (1998), and In re Care and Treatment of Crane, 269
Kan. 578, 7
P.3d 285 (2000) vacated on other grounds 534 U.S. 407, 151 L. Ed. 2d 856, 122 S.
Ct. 867
(2002), sexually violent predator commitment cases. In Crane, we stated:

"'We are hard-pressed to see how [prior bad acts] can be prohibited by K.S.A. 60-455 [in
sexually
violent predator cases] when it is an essential element of the required proof and necessary for the
decision-making process of the jury.' [Citation omitted.]

"[E]vidence of prior conduct [is] material to the question of likelihood that the
respondent would engage in repeat conduct as well as to the element of conviction of prior
conduct." Crane 269 Kan. at 591-92.

Our Miller decision recognizes that Gunby "did not discuss the
unique nature of
commitment proceedings under the Act. [It] focused only on K.S.A. 60-455 and common-law
interpretations and application of it in the setting of criminal trials." ___ Kan. at ___.

The second part of Colt's challenge to admission of evidence about his prior crimes
concerns those lacking a sexual component. Again, we took up at least the relevance aspect of the
same question in Miller, ___ Kan. at ___.

"'Relevant evidence' means evidence having any tendency in reason to prove any material
fact." K.S.A. 60-401(b). "The concept of relevance under Kansas law includes both whether
evidence is probative and whether it is material." State v. Vasquez, 287 Kan. 40, 50,
194 P.3d 563
(2008). We review whether evidence is probative under an abuse of discretion standard and
whether it is material under a de novo standard. See Vasquez, 287 Kan. at 50. A
district judge's
determination on whether certain evidence is unduly prejudicial is reviewed for abuse of
discretion. State v. Reid, 286 Kan. 494, 507-08, 186 P.3d 713 (2008).

As we discussed fully in Miller, ___ Kan. ___, nonsexual prior crimes of a
respondent in a
sexually violent predator commitment proceeding may be both probative and material of certain
diagnoses and behavior patterns. We have no hesitancy to rule that Colt's complete criminal
history helped to explain Rosenberg's diagnoses here.

Colt also argues that it was impossible for the district judge in this commitment
proceeding to make a valid call on relevance without knowing more about the facts of Colt's prior
crimes. This argument misses the point. Given Colt's diagnosis of antisocial personality disorder,
which covers persons whose behavior includes a pervasive pattern of disregard for and violation
of the rights of others, see American Psychiatric Association Diagnostic and Statistical Manual of
Mental Disorders § 301.7, p. 701 (4th ed. rev. 2005), the mere fact of Colt's many prior
convictions over several years was both probative and material. The Act requires a person
identified as a sexually violent predator to suffer from a mental abnormality. See K.S.A.
59-29a02(a). Colt's criminal history was persuasive evidence of one of the principal markers of his
malady.

Colt's other relevance argument – that K.S.A. 59-29a03 explicitly limits the types
of
offenses about which evidence can be admitted in a sexually violent predator commitment
proceeding and that his prior crimes are not among them – requires statutory
interpretation. We
review a district judge's interpretation of statutes de novo and rely exclusively on the plain
language of the text unless it is unclear or ambiguous. See State v. Storey, 286 Kan.
7, 9-10, 179
P.3d 1137 (2008) (de novo review); In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025
(2007) (plain
language).

Colt's argument is wholly without merit. The enumerated crimes to which Colt makes
reference are listed in K.S.A. 59-29a02(e), which defines the phrase "sexually violent offense."
That phrase is used in the Act as a descriptor for the types of crimes that may motivate the State
to seek commitment in the first place, see K.S.A. 59-29a03(a)(1), (2), (3), (4), not as a descriptor
for the types of crimes that may be used to determine the remainder of a person's qualifications for
the label of "sexually violent predator," e.g., a mental abnormality or personality
disorder. See
K.S.A. 59-29a02(a). K.S.A. 59-29a03 does not address the presentation of evidence in the trial of
a commitment petition at all.

The district judge did not err in rejecting Colt's effort to exclude proof of his prior crimes
on relevance grounds.

Constitutionality

As mentioned, Colt also makes an argument that "admission into evidence of all other
crimes or civil wrongs undermines the constitutionality of the . . . Act." His support for this
statement is almost fatally concise:

"These proceedings do not violate double jeopardy concepts because they are civil actions
designed not as punishment for ordinary criminals but those individuals suffering from a mental
illness who is '[l]ikely to engage in repeat acts of sexual violence.' To allow all prior convictions
would allow propensity evidence not of sexual violence but of being a criminal recidivist.
Kansas
v. Crane, 534 U.S. 407 [, 151 L. Ed. 2d 856, 122 S. Ct. 867] (2002), requires that the
application
of the Sexual Predator Act distinguish 'the dangerous sexual offender whose serious mental
illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical
recidivist convicted in an ordinary criminal case.'"

This passage from Colt's brief, repeated in his petition for review, appears to assert that
the only thing saving the Act from invalidity under constitutional double jeopardy doctrine is its
differentiation between persons who are dangerous because they are criminals at all from persons
who are dangerous because they are criminals with mental disorders that make them candidates to
commit future violent sex offenses. This is not what the United States Supreme Court has said.
Although Crane did emphasize that our statutory scheme enabling indefinite civil
commitment of
sexually violent predators must require proof of a respondent's "special and serious lack of ability
to control behavior," 534 U.S. at 412-13, that requirement arises out of substantive due process
rather than double jeopardy concerns. Crane, 534 U.S. at 409 (quoting Kansas
v. Hendricks, 521
U.S. 346, 356, 360, 138 L. Ed. 2d 501, 117 S. Ct. 2072 [1997]).

Regardless, Colt's constitutional argument is unpersuasive. This is a civil and not a
criminal proceeding. See Hendricks, 521 U.S. at 369; see also Hay, 263
Kan. at 830 (double
jeopardy not at issue in civil cases). Further, this is not a case in which the State chose to pursue
commitment under the Act based solely on a respondent's nonsexual prior crimes; such an
approach would run afoul of the high court's limits on the Act's constitutional interpretation. See
Crane, 534 U.S. at 412-13. Here, the State went far beyond reliance on Colt's long
nonsexual rap
sheet. It began by stipulating to his sexually violent offense of aggravated sexual battery, and it
continued with its expert's testimony about Colt's interviews, test results, and diagnoses. Although
Colt's criminal history, including all of his nonsexual prior crimes, formed a part of the evidence
against him, it was only a part.

K.S.A. 60-456(b)

Colt also challenges Rosenberg's reliance on records regarding his criminal history based
on K.S.A. 60-456(b) and our decision in State v. Gonzalez, 282 Kan. 73, 145 P.3d 18
(2006).
Because an expert may base an opinion only on "facts or data perceived by or personally known
or made known to the witness at the hearing," K.S.A. 60-456(b), and because Colt's prior
convictions were admitted into evidence solely because they undergirded Rosenberg's opinion, the
statute was, in Colt's view, violated. The State responds that the parties stipulated to the
foundation for the criminal history records and that K.S.A. 60-460(r) provides a hearsay
exception for judgments of previous convictions.

In this case, the records on Colt's criminal history were authenticated when the parties
stipulated to their foundation. That does not end our inquiry under 60-456(b), however, as our
Gonzalez decision explained regarding certain California records on which expert
Carolyn
Huddleston relied to form her psychological opinion for a competency hearing:

"K.S.A. 60-456(b) . . . precludes an expert witness in Kansas from giving an opinion based
on
facts or data not 'perceived by or personally known or made known' to the expert at trial or, as in
this case, at a competency hearing.

"[Huddleston's] opinion regarding defendant's competency, insofar as it depended
on the
California records, was not based on 'facts or data perceived by or personally made known' to
[Huddleston] because her awareness of those facts or data was not attained through her own
senses. Further, the phrase 'at the hearing' refers to facts put in evidence. State v.
Strauch, 239
Kan. 203, Syl. ¶ 4, 718 P.2d 613 (1986); Casey v. Phillips Pipeline Co., 199
Kan. 538, 546, 431
P.2d 518 (1967). In this case, defense counsel never offered the California records for admission
under one of the exceptions to the hearsay rule, and those records were never admitted except as
an appellate exhibit by the trial court. The letter from the custodian of the records was properly
rejected by the trial court because neither the records nor the letter was properly authenticated.
Because the California records were never admitted into evidence at the competency hearing, that
portion of Dr. Huddleston's opinion which was based on the California records was not based on
facts or data personally made known to the witness 'at the hearing.'

"K.S.A. 60-456(b) differs from its federal counterpart, Rule 703 of the Federal
Rules of
Evidence. . . . As noted in 4 Vernon's Kansas C. Civ. Proc. § 60-456(b), Author's
Comments
(2005 Supp.): 'The rationale of the Federal Rule is that judicial practice should be brought in line
with the practice of experts themselves when not in court, who, in the case of physicians, may
make life and death decisions on the basis of hearsay statements.'

"Under the federal rule, . . . if it is the customary practice in the expert's specialty
to
consider reports from nontestifying third parties in formulating an opinion, the expert's testimony
may be based on such reports. Under such circumstances, however, evidence of the report is not
admitted as substantive proof of the report's truth but for the limited purpose of showing the basis
of the expert's opinion. Consequently, upon request, the opposing party is entitled to a limiting
instruction by the trial judge. See Imwinkelried, Evidentiary Foundations § 9.03(4)(c) (6th
ed.
2005).

"In contrast to the federal rule, Kansas has adopted the traditional approach to the
question whether an expert may rely on reports from third parties, such as other experts, if the
reports do not fall within any hearsay exception. Under the Kansas rule, experts' opinions based
upon hearsay are not admissible in any court proceedings. See In re Care & Treatment
of Foster,
280 Kan. 845, Syl. ¶ 9, 127 P.3d 277 (2006). Because the California records were not
qualified
and admitted under one of the exceptions to the hearsay rule, the records themselves remained
inadmissible hearsay upon which Dr. Huddleston could not base her opinion that defendant was
incompetent to stand trial." State v. Gonzalez, 282 Kan. at 87-88.

The State urges us to overcome any hearsay problem with the records Rosenberg relied
upon by looking to K.S.A. 60-460(r), an exception allowing admission of final judgments
"adjudging a person guilty of a felony." We do not have the records themselves before us, but we
need not follow the path the State suggests. Our review reveals that the parties not only stipulated
to their foundation but also agreed that the records' admission was unnecessary, as concerns about
their content could "be appropriately addressed simply by asking [Rosenberg] to refer specifically
to a specific record if he has testified about something that he claims is from the record."
Admission of unreliable statements by out-of-court declarants to prove the truth of the matter
asserted is exactly what the hearsay rule is designed to prevent; this agreement appears to have
eliminated any useful purpose our enforcement of the rule might serve; waived any initial
objection
to the Rosenberg's reliance on and reference to the records; and, to the extent admission of his
opinion was error, invited it. See State v. Murray, 285 Kan. 503, 522, 174 P.3d 407
(2008)
(invited error no basis for relief on appeal).

Sufficiency of the Evidence

The State's burden under the Act is proof beyond a reasonable doubt. See K.S.A.
59-29a07(a). Our standard of review asks whether, after review of all the evidence, viewed in the
light
most favorable to the State, we are convinced a reasonable factfinder could have found the State
met its burden to demonstrate Colt is a sexually violent predator. See Hay, 263 Kan.
at 842.

The sufficiency question is not a close one on the facts in this record. Rosenberg's
diagnoses of Colt included the mental abnormality of Paraphilia Not Otherwise Specified. The
admitted documentary evidence included a handwritten "SEXUAL HIS[tory] from Colt, which
discussed his childhood and adult sexual experiences and expressed escalating hostility toward
women, including a plan to go on a 'raping spree.'" The evidence before the jury was more than
sufficient under even the demanding reasonable doubt standard.

Affirmed.

McFARLAND, C.J., not participating.

STANDRIDGE, J., assigned.1

1REPORTER'S NOTE: Judge Melissa Taylor Standridge, of
the Kansas Court of Appeals, was
appointed to hear case No. 98,105 vice Chief Justice McFarland pursuant to the authority vested
in
the Supreme Court by K.S.A. 20-3002(c).

ROSEN, J., dissenting: I respectfully dissent for the reasons stated in my dissenting
opinion
in In re Care & Treatment of Miller, (No. 97,273, this day decided).